Laws of England and Wales Essay Example for Free

integritys of England and Wales EssayThe defendant who seeks to avoid criminal liability on the introduction that s/he was hapless from a kind disorder at the beat of the alleged crime must incur a defensive measure that falls inwardly one of the following, legally recognised, categories In sanity, cut tariff or Automatism. While, at one level or a nonher, these rational disorder defensive measures sh ar common characteristics, they each(prenominal) differ significantly. Unfortunately, this point does non appear to be fully appreciated in English Law. hash out the validity of this statement. Inherent in our legal system is an idea of culpability. The word itself embodies notions of moral function and blame. on that point are two elements that will allow us to determine whether or not someone is to be considered culpable. The first is that the person on whom we wish to apportion blame is an actual agent of harm as opposed to a mere causer. That is to say that they are instrumental in an action and are not simply a victim of a spasm or similar associated condition. The second is that he/she has the force to perceive the practice of law of natures and moral order that exist at heart society. Harts principles of justice assert that a moral authorise to punish is needed by society and unless a man has the capacity and fair opportunity or chance to adjust his behaviour to the law, its penalties ought not be applied to him. such deep-rooted notions of culpability gift necessitated gainment in the area of demurrers to ensure that those who fall outside of the legally recognised parameters of accountability are afforded protection. Amongst such(prenominal) defences are Insanity, Automatism and vitiated state. This essay will identify the similarities and differences of these defences by exploring their theoretical foundations and determine whether, in practice, they are sufficiently understood by the courts to achieve their desired end.T he theoretical basis for an insanity defence is embedded in the notions of fair opportunity as discussed above. It is felt that the insane man is too farthest removed from normality to make us angry with him. The impetus of the law and its functions might well be considered outside of his comprehension and similarly, so too might the moral implications of his act. Therefore, it would not be either effectual or equitable to hold such a man criminallyresponsible . As duff remarks of the potential insane defendant if she cannot understand what is macrocosm done to her, or why it is creation done, or how it is related as a penalty to her past offence, her punishment becomes a travesty?. Therefore, if a defence of insanity is successful the defendant will be given a special verdict that is to say not guilty by reason of insanity. Although this special verdict whitethorn bring indefinite custody (a fact which is reconciled in theory by compelling considerations of public interest ) it still serves to ricochet a lack of culpability and at that placefore, blame.The basis on which the non-insane automatism defence is founded is somewhat more fundamental than that of insanity. It was developed to exculpate those who had been the victim of events rather than those who had fallen foul to setting . A plea of automatism is not barely a denial of fault, or of function. It is more a denial of authorship in the star that the living dead is in no way instrumental in any criminal act. Lord Dilhorne remarked in Alphacell that an unintended and unintended act without negligence? might be verbalize, not caused. Others do described such acts as acts of god. It is with this class of act that the defence of automatism is concerned acts which might be verbalise seen as inconsistent with the demand of an actus reus . This lack-of-instrumentality concept is reflected by the fact that on a finding of automatism a defendant will be granted an unqualified acquittal by the courts. Detention is unnecessary for as well being blameless, the zombie spirit presents no future threat to society.Whilst Insanity and Automatism serve as general defences in law, change magnitude responsibility operates only as a defence to murder. It offers those bordering on insanity the opportunity to argue that at the time of the killing they were suffering from such freakishity of learning ability so as to substantially impair their mental responsibility. If such an argument is successful (all other things being equal) the potential murderer will be convicted of manslaughter and therefrom will escape the requisite life sentence that a finding of murder brings. The defences existence is confirm ( very much like insanity) by notions of responsibility and blame. The doctrine, it was felt, was needed to reflect the view that where there was less responsibility there ought to be less punishment.Despite some clear differences in the three defences theoretical foundations a nd intentions, it could be said that technically they have become somewhat confused in law. Discussion will now let go to the two automatism defences before then going on to examine diminished responsibility in context.Whilst two automatism defences are grounded in the idea that where there is no responsibility there should be no blame, polity reasons have necessitated their independent development. Because of this, the person who seeks to raise automatism as a defence is subject to a precise tight definitional distinction. This tight definitional distinction amidst automatism and insanity is highlighted by Glanville Williams when he describes non-insane automatism as any abnormal state of consciousness.while not amounting to insanity. Such statements offer little definitional worth, as to understand automatism we must first understand insanity and this, as will become clear, is no easy task.The contemporary framework of the insanity defence can be found in MNaghtens Case where Lord Tindal authoritatively ruled that??to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the society accused was labouring under such a defect of reason, from illness of the estimation, as not to accredit the nature and quality of the act he was doing or, if he did know it, that he did not know he was doing what was wrong.Subsequent development of a non-insane automatism defence, for reasons discussed above, necessitated judicious refinement of these insanity parameters to insure that those who sought to invoke the actor were deserving . Therefore, considerable onus was placed upon the meaning of the rules, especially the phrase disease of the mind.First, it was decided that mind referred to the mental faculties of reason, memory and understanding and not simply the organic mass that is the brain. Then, in Sullivan, (the defendant was aerated with assault which, heclaimed, was the result of the post-ict al stage of an epileptic seizure) the definition expanded to catch transient and sporadic impairment of the mind. It was held that the permanence of a disease cannot on any rational ground be applicable to the application by the courts of the MNaghten rules. This finding ran hostile to contemporary medical definitions and began to impinge upon the design of the non-insane automatism defence that being to catch one-off, faultless incidents of automatism.Perhaps more significantly, Sullivan continued to develop Quick on what is now fancy to be the defining boundary between the two defences, that of internal and external causes. This distinction was cemented in burgher where Lord Lane explicitly referred to the difference between internal and external causes as the point on which the case depends, as others have depended in the past The defendant in Burgess was a somnambulist who assaulted a friend whilst in a somnambulistic state. It was held that somnambulism was a disease of th e mind under the MNaghten rules mostly because it was considered a pathological (and therefore, internal) condition by expert witnesses in cross-examination.While, to some, this internal/external distinction makes unspoilt sense, to others its effect is wholly out or keeping(p), as it fudges the boundaries between the theoretical rationales of insane and non-insane automatism. Irene Mackay, for example (as well as pointing to at odds(p) obiter ) attacks the distinction with reference to its effect. She contends that sleep can hardly be called an illness, disorder or abnormal condition. It is a perfectly normal condition. Of interest here, Graham Virgo points to anecdotal evidence that cheese might cause sleepwalking. If such evidence could be substantiated, the somnambulist could potentially escape a special verdict by rightfulness of the fact that eating cheese would be considered an external cause. Such a consideration is far from easily reconcilable with the aforementioned n otions of blame and responsibility as expounded by Harts principles of justice.Mackay continues to attack Burgess on a second defining point. She contends that the court failed to properly adopt the definition of disease of themind as pull forward by Lord Denning in Bratty namely that it is any mental disorder which has manifested itself in violence and is prone to recur. Considering statistical evidence showing that no one had ever appeared before a court twice charged with somnambulistic violence, Mackay remarks something which is prone to recur must be at least accustomed to recur or have a tendency to recur or be to some extent likely to recur. Despite such protestations, current medical opinion is that sleepwalking is caused by internal factors and may be likely to recur . Therefore it is suitable for MNaghten insanity as defined.The result of these calculated distinctions between the two defences is that epileptics, sleepwalkers, those suffering from arteriosclerosis and diabetics during a hyperglycaemic episode, may all now be regarded as insane. This is for certain an unacceptable position. After all, such people appear to fit far more comfortably within the (theoretical) realms of automatism than insanity. They are rational people, capable of recognising rule following situations, who are (largely) the victims of one off incidents of involuntariness. If we are to denounce a diabetic insane because they neglected to take their medication, are we to do the same with one who gets a migraine from omitting to take aspirin? The difference of cause is the resultant harm and the need for the courts to protect society.Incidentally, bordering scrutiny of the MNaghten rules leads us to close down that where a defendants inability to recognise he was doing something wrong was imputable to something other than a defect of reason caused by a disease of the mind he would generally have no defence at all.Things do not get any clearer when the defence of Dimi nished duty is brought into the frame. The statutory provision for the defence is found in Section 2(1) of the Homicide Act 1957 and provides that a person shall not be convicted of murderIf he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mentalresponsibility for his acts or omissions in doing or being a party to the killing.The problems begin with semantics and normative questions of degree what qualifies as abnormality of mind, how much is substantially and what is mental responsibility? Even debates on the questions have offered little assistance. For example, the Government, in an attempt to explain the key term, said that abnormality of mind referred to conditions bordering on insanity while excluding the mere outburst of rage or jealousy. Such an explanation is obviously of little worth considering that the response of judges and psychiatrists?to the section? have ranged from the very(prenominal) generous to the very strict. In fact the courts it seems, have entertained practically any ground where it was thought morally inappropriate to convict the defendant of murder. For example, psychopaths, reactive depressives , alcoholics and those in disassociated states or suffering from unresisting impulses have all been brought within the protective scope of the section.Lord Parker in Byrne, also attempting to clarify the sections ambit, said that it dealt with partial insanity or being on the border line of insanity. He went on to add that Inability to exercise will-power to assure physical acts? is? sufficient to entitle the accused to the benefit of this section difficulty in controlling his acts? may be. Confusions are evident here for, as Smith and Hogan note A man whose impulse is irresistible bears no moral responsibility for his act, for he has no choice a man whose impulse is much more di fficult to resist than that of an ordinary man bears a diminished degree of moral responsibility for his actIt would appear then, that the former should be acquitted as insane rather than have his punishment mitigated. However, if the inability to control his acts is not caused by a defect of reason or disease of the mind then the defendant has no defence in insanity. In this respect therefore, the defence of diminished responsibility appears to be patching up the deficiencies of MNaghten acting as a device for circumventing the embarrassments that flow from a mandatory sentence, or the stigma attached to a finding of insanity, by allowing judges to follow in a common sense way their sense offairness.Greiw, writing in 1988 comments on the section. He suggests that the section is not to be seen as a definitional aid rather it is to be seen as legitimising an expression of the decision-makers personal sense of the proper boundaries between murder and manslaughter. The result of the la x and open wording has allowed the defence of diminished responsibility to be used almost as a catch-all excuse, spanning, and adding to, the defences of insane and non-insane automatism. It has been able to accommodate states of mind and circumstance that would be insufficient for either automatism or insanity whilst at the same time justifying this accommodation by virtue of the increased severity of a murder charge.To some this position is considered entirely unacceptable and contrary to the theories of blame and responsibility discussed hereto. Sparks for example, comments to say that we are less willing to blame?a man if he does something wrong, surely does not mean we are willing to blame him less, if he does something wrong. It would seem however, that due to the inadequacies of MNaghten and the bridal that some states of mind falling short of insanity should be considered mitigatory, the courts had little choice but to develop the defence of diminished responsibility in thi s way.From the issues discussed in this essay it is clear that whilst, in theory, the three defences of Insanity, Automatism and Diminished Responsibility, do indeed exhibit differences, in practice they have become somewhat amalgamated. This is probably due to two factorsFirst, it must be accepted that there is no sharp dividing line between sanity and insanity, but that the two extremes? shade into one another by imperceptible gradations. This proposition leads us to conclude that first, the problem is one of definition. Second, the courts are aware that pleading a blackout is one of the first refuges of a guilty conscience and is a popular excuse. Therefore, they have tended to view the problem of involuntariness with great circumspection and have adopted a restrictive approach as to when there should be a complete prerogative from liability. In order to balance this definitional problem with the requirement ofcertainty, whilst ensuring that only the deserving are completely acq uitted, the law has had no alternative but to define distinct parameters. It is these parameters which have both caused the fudging of the two automatism defences and necessitated the creation of a diminished responsibility defence.Whilst, in some respects, this amalgamation is unacceptable, its effect has been to provide blanket coverage for those defendants suffering from either a mental disorder, disassociated condition or episode of sudden involuntariness. Far from saying that the law has failed to fully appreciate the differences it appears that the courts, due to restrictions, have simply created ad hoc a range of defences whose purpose is to reflect, on a continuum, impeachable notions of culpability.Bibliography.Books1. Ashworth, Principles of Criminal Law (2nd ed., Oxford, 1995)2. Clarkson. C.M.V. Keating. H.M. Criminal Law. Text and Materials. (4th ed., 1998, Sweet Maxwell)3. Hart. H.L.A., Punishment and Responsibility, (1968, Oxford)4. Smith , J.C. B. Hogan., Criminal L aw (6th Edition, 1988, London, Butterworths.)5. Williams. G., Textbook of Criminal Law (2nd ed., Stevens Sons. 1983)ArticlesDell, Diminished Responsibility Reconsidered. 1982 Crim.L.R. 809Duff. R.A., Trial and Punishments J.L.S.S. 1986, 31(11), 433Goldstein. A., The insanity Defense (1967)Griew. E., The future of Diminished Responsibility. Crim. L.R. 1988, Feb, 75-87Laurie. G.T., Automatism and Insanity in the Laws of England and Scotland. Jur. Rev. 1995, 3, 253-265Mackay. I., The Sleepwalker is Not Insane. M.L.R. 1992, 55(5), 714-720Padfield. N.,Exploring a quagmire insanity and automatism. C.L.J. 1989, 48(3), 354-357Royal Commission on Capital Punishment, Cmnd. 8932 (1949-1953)Smith. J.C., Case and Comment. R. v. Hennessy. (1989) 86(9) L.S.G. 41 (1989) 133 S.J. 263 (CA)Smith. K.J.M. Wilson. W., Impaired Voluntariness and Criminal Responsibility Reworking Harts Theory of Excuses ? The English Judicial Response. O.J.L.S. 1993, 13(1), 69-98Sparks. Diminished Responsibility in theor y and Practice (1964) 27 M.L.R 9Virgo. G., Sanitising Insanity ? Sleepwalking and Statutory recover C.L.J. 1991, 50(3), 386-388Cases1. Alphacell 1972 2 All ER 4752. Burgess 1991 2 W.L.R. 106 C.O.A. (Criminal Division)3. Byrne 1960 3 All ER 14. barrel maker v. McKenna 1960 Q.L.R 4065. Hennessy (1989) 89 Cr.App.R 10, CA6. Kemp 1956 3 All ER 249 1957 1 Q.B.3997. MNaghtens Case (1843) 10 C F, 200, 8 Eng. Rep. 718.8. Quick and Paddison 1973 Q.B. 9109. Seers 1985 Crim.L.R, 31510. Sullivan 1984 A.C. 156 (House of Lords)11. Tandy 1988 Crim.L.R 30812. Tolson (1889)Legislation1. Homicide Act. 1957.2. Trial of Lunatics Act 1883